S. N. BHARGAVA, J. - (1.) THIS is an appeal against the judgment passed by Additional Sessions Judge, Dholpur, convicting the appellant u/s 302 read with Sec. 34 IPC and sentencing him to imprisonment for life.
(2.) PURAN Singh (PW-3) submitted a written report (Ex. P. 1) at Police Station Raja Kheda, on 22. 3. 1981, at about 7 PM, stating therein that he along with Amar Singh (PW-1), Ranjeet Singh (PW-2), Ramdas (PW-4), and the deceased Ram Singh had gone to see wrestling, in Village Jarah, and stood up by the side of accused Makhan and Ram Bharose. The wrestling came to an end at about 4. 30 p. m. When they were returning, accused Makhan and Ram Bharose asked them to come with them to their house and enjoy sweets as it was Holi. Thereupon, Amar Singh, Ranjeet Singh and deceased Ram Singh, went alongwith Makhan and Ram Bharose, whereas PURAN Singh and Ramdas left for their village Jaitpur and stayed at the flour mill of Nawab Singh. Makhan and Ram Bharose offered meals to Amar Singh, Ranjeet Singh and Ram Singh (deceased ). Ram Bharose took the double barrel gun which was being carried by deceased Ram Singh, and thereupon, it is alleged, accused Makhan asked Ram Bharose to fire and shouted 'de SAALE CHAMRE MEIH' as Layak Singh was got murdered by him, and that he will get other Thakurs also murdered, whereupon Ram Bharose fired on the back of Ram Singh, as a result of which he died on the spot. Amar Singh and Ranjeet Singh ran away due to fear. Meanwhile, PURAN Singh and Ramdas came to the house of Makhan and saw that Makhan and Ram Bharose were dragging the dead body of Ram Singh outside the house of Makhan. On the aforesaid report, police registered FIR (Ex. P. 18) and after usual investigation, submitted challan against Makhan Singh, Rajendra Singh and Deewan Singh & Ram Bharose. Since Ram Bharose was less than 16 years of age, he was ordered to be tried by the Children Court. The accused persons were committed to the court of Sessions who after trial, acquitted accused Rajendra Singh and Deewan Singh, vide his judgment dated 8. 4. 1985. Accused Makhan Singh was absconding and when he surrendered on 20. 8. 85, arguments were heard and he has been convicted as aforesaid. Hence, this appeal. Learned counsel for the appellant, during the course of arguments, informed that co-accused Ram Bharose had died but there is no such evidence on record in the present case. We have heard learned counsel for the parties, and have also perused the impugned judgment and record of the case. Learned counsel for the appellant has very vehemently argued that the prosecution story cannot be believed against the present appellant. The so called eye witnesses PW-1 Amar Singh and PW-2 Ranjeet Singh are not of sterling worth as their evidence has been contradicted and falsified by the medical evidence, inasmuch as both of them have deposed that Ram Bharose fired the gun from very close range "do CHHAR UNGAL SE', whereas as per the statement of PW-7 Dr. Mohan Lal, who conducted the post-mortem of the deceased vide Ex. P 3, the fire must have been made from a distance of more than four feet. Thus, the evidence of PW-1 Amar Singh and PW-2 Ranjeet Singh is against the medical evidence and cannot be believed.
(3.) HE has further submitted that the prosecution has not been able to connect the gun with the crime because in the report (Ex. P. 23), submitted by the Central Forensic Science Laboratory, it had only been mentioned that the rifle was in working order and had been fired through but no opinion on the time of its last firing could, however, be given. Similarly, it further discloses that the fired cartridge which was recovered, could be fired from the rifle but a definite opinion could not be given for want of sufficient characteristic marks. Learned counsel for the appellant has further submitted that there is no satisfactory evidence to hold that the incident took place in the house of the appellant. He has further submitted that the evidence of PW-1 and PW-2, who are the only eye witnesses, should not be believed as their conduct in running away was most unnatural. He has further drawn our attention to the observations of the learned trial court, para 15 of the judgment, wherein it has come to the conclusion that the prosecution has failed to substantiate the motive and since the motive has not been proved, the accused appellant cannot be convicted. We do not propose to comment on the points raised by learned counsel for the appellant because trial against Ram Bharose, co-accused, may still be pending in the Children Court and there is no evidence on record that Ram Bharose has died during the pendency of the case, and if we made some observations, it might prejudice the trial of Ram Bharose, but still we would only add that the arguments raised by learned counsel for the appellant cannot be said to be without any substance and cannot be brushed aside. Ram Bharose. the co-accused, was a minor and it is very improbable that appellant Makhan could have asked Ram Bharose to fire the gun when Ram Bharose was admittedly of tender age. Moreover, since no motive has been proved, the role assigned to Makhan to instigate Ram Bharose also falls through. The motive according to the prosecution was that since the dacoit Layak Singh, who was a Thakur, was liquidated by the police on the Mukhbiri of Ram Singh, Makhan Singh, a Thakur, wanted to take revenge of the death of Layaksingh. The prosecution having failed to prove this part of their case, the story given by PW-1 Amar Singh and PW-2 Ranjeet Singh that Nawab Singh instigated Ram Bharose to fire and kill as he had got killed Layak Singh, is also not believable. Moreover, PW-3 Puran and PW-4 Ramdas do not support the prosecution story that Nawab Singh has stated so because when Amar Singh and Ranjeet Singh met PW-3 Puran and PW-4 Ram Dayal they ought to have told them about the instigation by Nawab Singh and PW-3 and PW-4 should have deposed so in their statements recorded in the court. But surprisingly, we find that PW-3 and PW-4 are conspicuously silent in their statements while narrating the whole story and supporting the prosecution case that Nawab Singh had asked Ram Bharose to fire and kill Ramsingh. This also makes the prosecution story very improbable. Evidence of PW-1 and PW-2 being contradictory with the medical evidence, also takes them away from the category of wholly reliable and unimpeachable witnesses. Accused had offered meals to them. They had no arms with them. It was Ramsingh who was carrying the rifle which was taken by Ram Bharose just for examining and therefore, there could be no intention to cause death. If the accused Makhan Singh really wanted to murder the deceased, he could have got his own arms from his house and inflicted injury or fired the gun and would not have asked Ram Bharose, a minor, to take the risk of fire. Thus, in our opinion, the prosecution has failed to substantiate its case against the accused - appellant and he is entitled to benefit of doubt. ;